T-2014-87
John Paul Gariepy (Plaintiff)
v.
Administrator of the Federal Court of Canada,
Public Service Commission and Her Majesty the
Queen (Defendants)
INDEXED AS: GARIEPY V. CANADA (ADMINISTRATOR OF FED
ERAL COURT)
Trial Division, Dubé J.—Ottawa, November 29
and December 1, 1988.
Public service — Selection process — Competitions —
Selection Board administrative body subject to duty to act
fairly — Board members must be impartial and seen to be
impartial — Reasonable apprehension of bias as (1) Board
Chairman himself concerned about his presence on Board (2)
Chairman discussing substance of pending court action be
tween parties with defendant Administrator (3) Administrator
could be asked for reference to determine plaintiff's personal
suitability — No appeal based on bias under s. 21 as Appeal
Board's role merely to ascertain whether Selection Board
observing merit principle.
Judicial review — Equitable remedies — Injunctions
Interlocutory injunction to prevent appointment of Vancouver
District Administrator of Federal Court — Prima facie
reasonable apprehension of bias on part of Selection Board
Chairman — Irreparable harm to plaintiff financially and in
terms of career advancement — Balance of convenience
favouring plaintiff as competition could proceed upon replac
ing Chairman.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Public Service Employment Act, R.S.C. 1970, c. P-32, ss.
6, 10, 21.
Public Service Employment Regulations, C.R.C., c.
1337, ss. 13-20.
CASES JUDICIALLY CONSIDERED
APPLIED:
Committee for Justice and Liberty et al. v. National
Energy Board et al., [1978] 1 S.C.R. 369; 68 D.L.R. (3d)
716.
REFERRED TO:
Attorney General of Canada v. Henri (A-623-85, Mar-
ceau J., judgment dated 17/2/86, F.C.A., not reported);
Blagdon v. Public Service Commission, [1976] 1 F.C.
615 (C.A.); Winegarden v. Public Service Commission
and Canada (Minister of Transport) (1986), 5 F.T.R.
317 (F.C.T.D.); Nicholson v. Haldimand-Norfolk
Regional Board of Commissioners of Police, [ 1979] 1
S.C.R. 311; Martineau v. Matsqui Institution Discipli
nary Board, [1980] 1 S.C.R. 602; (1979), 106 D.L.R.
(3d) 385; Inuit Tapirisat of Canada v. The Right Hon
ourable Jules Léger, [1979] 1 F.C. 710 (C.A.); Attorney
General of Canada v. Inuit Tapirisat of Canada et al.,
[1980] 2 S.C.R. 735; Sethi v. Canada (Minister of
Employment and Immigration), [1988] 2 F.C. 552
(C.A.); Energy Probe v. Atomic Energy Control Board,
[1984] 2 F.C. 227 (T.D.); Energy Probe v. Atomic
Energy Control Board, [1985] 1 F.C. 563; (1984), 15
D.L.R. (4th) 48 (C.A.); Evans v. Public Service Com
mission Appeal Board, [1983] 1 S.C.R. 582; 146 D.L.R.
(3d) 1; American Cyanamid Co. v. Ethicon Ltd., [1975]
A.C. 396 (H.L.).
COUNSEL:
James Aldridge for plaintiff.
Edward R. Sojonky, Q.C. for defendants.
SOLICITORS:
Rosenbloom & Aldridge, Vancouver, for
plaintiff.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for judgment
rendered in English by
DuBÉ J.: The plaintiff, presently Clerk of Pro
cess at the Vancouver office of the Federal Court
of Canada, seeks an interlocutory injunction to
restrain the defendants from making any appoint
ment to the position of District Administrator in
the Vancouver office until such time as an impar
tial Selection Board has been appointed or until
judgment has been pronounced in the pending
action between the two parties.
1—The facts
The pending action was launched by the plain
tiff on September 23, 1987. In his statement of
claim he alleges that the decision of the Adminis
trator to designate the position in question as
"bilingual imperative" was unreasonable, arbi
trary, perverse and contrary to the Public Service
Employment Act [R.S.C. 1970, c. P-32]. The
plaintiff also applied for an interlocutory injunc
tion restraining the selection and staffing process
for that position and on November 6, 1987 Mul-
doon J. issued an order restraining the process
until judgment.
On August 22, 1988, McNair J., upon motion
by the defendants, allowed the Administrator to
change the language requirements to "bilingual
non-imperative" and to set in motion the reclassi
fied competition for the position [[1989] 1 F.C.
544 (T.D.)]. Thereupon the defendants com
menced a new revised competition. In due course
the plaintiff received the amended statement of
qualifications for the position which indicated that
candidates will be rated under the headings of:
"knowledge", "abilities" and "personal suitabili
ty".
On October 18, 1988 the plaintiff was notified
by letter from Gordon Wilkins, Assistant Adminis
trator, Personnel, that the Screening Board had
reviewed the plaintiffs application and determined
that he met the basic qualifications. The letter also
informed him that he was scheduled for an inter
view to be held at Vancouver, B.C., on October 24,
1988 at 11:00 a.m.
Upon arriving at the scheduled interview, the
plaintiff learned that the members of the Selection
Board were Florent Tremblay, Director, Social
Development Portfolio, Staffing Programs Branch
of the Public Service Commission, acting as Chair
man; Michelle Thomas, Head, Staffing at the
Vancouver office of the Department of Veterans
Affairs, a certified Staffing Officer; and Joseph
Daoust, Special Projects Officer in the Montréal
Office of the Federal Court. Also persent was
Alfred Preston, Former Prothonotary and present
ly an employee of the Federal Court at the
Toronto Office, acting as a technical adviser to the
Board. The events that follow are substantially
confirmed by both the affidavits of the plaintiff
and of Mr. Tremblay.
The plaintiff was the last candidate to be inter
viewed. At the outset, he produced a sheet of paper
from the inner breast-pocket of his jacket and
proceeded to address a series of questions to the
Chairman and to the other members of the Board.
After requesting and recording the name and title
of each of the Board members, the plaintiff asked
them why they were on the Board and whether
they had been selected by the Administrator. The
Chairman answered that the Deputy Head (the
Administrator) of the Federal Court had sought
the assistance of the Commission in providing a
senior representative from outside the Federal
Court on the Selection Board and that he was
asked by his supervisors to look after the request.
The plaintiff then asked the Chairman whether
he had talked to the Administrator and Mr. Trem-
blay answered that he held discussions with him
only to the extent necessary to clarify his request
for outside representation on the Selection Board.
The plaintiff inquired whether the Chairman had
discussed the plaintiffs court action and Mr.
Tremblay answered that the Administrator had
touched upon it briefly in explaining why the
linguistic profile had been changed from "impera-
tive" to "non-imperative". The plaintiff then que
ried whether the Board would seek a reference
from the Administrator or from the District
Administrator in Vancouver, his present supervisor
after the interview. Mr. Tremblay answered that
"if a reference was required in this case, it would
not necessarily be sought from Mr. Biljan ... the
usual practice was to seek references from a candi
date's immediate supervisors, both past and
present, where required".
Thereupon the plaintiff requested an adjourn
ment from the Selection Board to seek a judicial
ruling on the existence of a reasonable apprehen
sion of bias. The request was denied.
2—The issue
The issue to be resolved is whether or not, under
the circumstances of this case, there can be a
reasonable apprehension of bias on the part of the
plaintiff. The classic test as to whether there is a
reasonable apprehension of bias arises from the
dissenting decision of de Grandpré J., formerly of
the Supreme Court of Canada, in Committee for
Justice and Liberty et al. v. National Energy
Board et al.' (at pages 394 S.C.R.; 735 D.L.R.):
1 [1978]I S.C.R. 369; 68 D.L.R. (3d) 716.
The proper test to be applied in a matter of this type was
correctly expressed by the Court of Appeal. As already seen by
the quotation above, the apprehension of bias must be a reason
able one, held by reasonable and right minded persons, apply
ing themselves to the question and obtaining thereon the
required information. In the words of the Court of Appeal, that
test is "what would an informed person, viewing the matter
realistically and practically—and having thought the matter
through—conclude. Would he think that it is more likely than
not that Mr. Crowe, whether consciously or unconsciously,
would not decide fairly.
Counsel for the plaintiff, in his factum, claims
that the following circumstances and information,
when considered by a reasonable and right-minded
person, would lead to an apprehension of bias in
respect of the Chairman of the Selection Board:
a) The existence of the action between the Plaintiff and
Defendants seeking declarations, inter alia, that the Defendant
Administrator has acted unfairly and contrary to law with
respect to the staffing of the position of District Administrator.
b) The Defendant Administrator appointed the chairman of
the selection board.
c) The Defendant Administrator had a conversation concern
ing the Plaintiffs application and the within action with the
chairman of the selection board prior to the interview.
d) The chairman indicated to the Plaintiff that if the Plaintiff
qualified under "knowledge" and "abilities", personal refer
ences would be sought from the Defendant Administrator in
order to provide input into the rating to be assigned to the
Plaintiff with respect to "personal suitability".
e) It is normally necessary for candidates to achieve a passing
score on their "personal suitability" in order to be included on
an eligible list.
f) There is a reasonable apprehension that either the chairman
of the selection board, the Defendant Administrator to be
consulted about the Plaintiffs "personal suitability", or both
will consciously or unconsciously weigh the fact that the Plain
tiff has commenced the within action against the Defendant
Administrator, at a time prior to the trial of the action and the
rendering of judgment therein.
3—The appointment of the Chairman
According to the affidavit of Mr. Tremblay, he
was not selected personally by the Administrator.
He was asked by his superior, Ercel Baker, Execu
tive Director, Staffing Programs Branch, to return
a telephone call from Gordon Wilkins, Assistant
Administrator of the Federal Court, requesting the
participation of a senior representative of the
Commission on a Selection Board to fill the posi
tion of District Administrator of the Vancouver
office. Mr. Tremblay knew that the staffing of
such a position had been delegated by the Com
mission to the Administrator and inquired as to
the reason for the request from Mr. Wilkins who
imformed him of the Court action by one of the
applicants and the reclassification from "bilingual
imperative" to "bilingual non-imperative".
Mr. Tremblay declares that he requested a
meeting with Mr. Wilkins and the Administrator.
Mr. Tremblay's initial intention was not to sit on
the Selection Board himself but to assist in identi
fying one or two persons available and qualified.
At the meeting with the Administrator, Mr. Biljan
explained the change of classification and that "in
the circumstances of the case, he not only wanted
a fair Selection Board but one that would be seen
to be fair" and authorized Mr. Tremblay to select
the board members and to advise him of his
selection.
Thereafter, Mr. Tremblay made several con
tacts, but apparently could not find competent
persons to be available for the interview to be held
on October 24, 1988 in Vancouver. There is no
evidence on record, and none was provided to me,
as to why the interview had to be held on that
date. Mr. Tremblay then met again with Mr.
Biljan and Mr. Wilkins, "and advised them that,
due to the unavailability of Ms. Dufresne, Ms.
Bazinet, Ms. Hickey, it would be necessary for me
to sit on the Board myself". Further on in his
affidavit, Mr. Tremblay states that he reviewed at
his meeting with Messrs. Biljan and Wilkins the
"limitations affecting the selection of Board mem
bers", as follows:
(a) the need for all Board members to occupy positions at an
equivalent or higher level than that to be staffed;
(b) the need for all Board members to be fluently bilingual,
subject to the consideration that at least one Board member
should be anglophone;
(c) the need for at least one Board member to have intimate
knowledge of the operations of the Federal Court; and
(d) the need to have a certified staffing officer on the Board.
Mr. Tremblay goes on to say in his affidavit that
"with respect to the requirement identified in sub-
paragraph 15(c) above, I indicated my belief that
Mr. Biljan would be best qualified to represent the
Federal Court on the Board". Mr. Biljan expressed
concern about his presence in view of the Court
action but "it was agreed that Mr. Biljan would
think it over but would withdraw if Mr. Wilkins
could identify someone else in the Federal Court to
sit on the Board."
4—The law and the jurisprudence
Appointments within the Public Service of
Canada are governed by the provisions of the
Public Service Employment Act. 2 Section 6 there
of empowers the Public Service Commission to
delegate any of its functions to deputy heads who
may subdelegate to other officials. Section 10 pre
scribes that appointments to and within the Public
Service must be based on selection according to
merit as determined by the Commission. Sections
13 to 20 of the Public Service Employment Regu
lations [C.R.C., c. 1337] empower the Commis
sion to establish competitions for the purpose of
selecting qualified candidates for a position. The
names of the highest ranking candidates, as deter
mined in the competition, are placed in order of
merit on a list known as the "eligible list" which
list remains valid for a determined period.
Under the Act, the only pertinent right of
appeal is pursuant to section 21 which grants to
every unsuccessful candidate the right to appeal,
against the appointment to a board established by
the Commission to conduct an enquiry (the
"Appeal Board"). As a result of the Appeal
Board's decision, the Commission shall either con
firm, revoke, make or not make the appointment.
It is common ground that the Appeal Board is a
quasi-judicial body, whereas the Selection Board is
merely an administrative body. The role of the
Appeal Board is not to reassess the candidates, but
merely to ascertain whether the Selection Board
has observed the merit principles. In other words,
the plaintiff in this case could not appeal to the
2 R.S.C. 1970, c. P-32.
Appeal Board in respect to his relative ranking on
the eligible list. Thus, if he is to raise the issue of
bias on the part of a member of the Selection
Board, that issue could not be entertained by the
Appeal Board.'
Administrative bodies as such are subject to a
duty to act fairly. Obviously, the requirements of
fairness must be balanced by the needs of the
administrative process in question. The degree and
nature of the duty of fairness to be applied by any
particular tribunal will vary in accordance with the
legislation which created that tribunal, the nature
of its authority, the extent of the power exercised
by it and the consequences of the exercise of that
power upon the individuals affected. 4
Whatever that duty might be, it surely encom
passes, at the very minimum, the duty of the
members of such a Board to be impartial and to be
viewed as being impartial: there must be no
reasonable apprehension of bias. As the Selection
Board is purely an administrative board, it is not
subject to the rules of natural justice, such as audi
alteram partem, but it is bound to carry out its
functions fairly, honestly and impartially. 5
6—My findings
The instant application being for an interlocuto
ry injunction, the first criterion to be applied is
' Attorney General of Canada v. Henri, A-623-85, February
17, 1986 (F.C.A.) (unreported); Blagdon v. Public Service
Commission, [1976] 1 F.C. 615 (C.A.); and Winegarden v.
Public Service Commission and Canada (Minister of Trans
port) (1986), 5 F.T.R. 317 (F.C.T.D.)
4 Nicholson v. Haldimand-Norfolk Regional Board of Com
missioners of Police, [1979] 1 S.C.R. 311; Martineau v. Mat-
squi Institution Disciplinary Board, [1980] 1 S.C.R. 602;
(1979), 106 D.L.R. (3d) 385; Inuit Tapirisat of Canada v. The
Right Honourable Jules Léger, [1979] 1 F.C. 710 (C.A.); and
Attorney General of Canada v. Inuit Tapirisat of Canada et
al., [1980] 2 S.C.R. 735.
5 Sethi v. Canada (Minister of Employment and Immigra
tion), [1988] 2 F.C. 552 (C.A.); Energy Probe v. Atomic
Energy Control Board, [1984] 2 F.C. 227 (T.D.); Energy
Probe v. Atomic Energy Control Board, [1985] 1 F.C. 563;
(1984), 15 D.L.R. (4th) 48 (C.A.); Evans v. Public Service
Commission Appeal Board, [1983] 1 S.C.R. 582; (1983), 146
D.L.R. (3d) 1; and Blagdon v. Public Service Commission,
[1976] 1 F.C. 615 (C.A.). '
whether there is a serious issue to be tried. 6 In my
view, there is.
The plaintiff does have valid grounds for har
bouring a reasonable apprehension of bias. A real
istic view of the situation by any reasonable person
must be that the Chairman of the Selection Board
is more likely than not, consciously or unconscious
ly, to be biased vis-Ã -vis the candidacy of the
plaintiff. In his own affidavit, he states (at para
graph 16) that at the meeting with the Adminis
trator of the Court "I indicated my belief that Mr.
Biljan would be best qualified to represent the
Federal Court on the Board". Informed as he was
that the plaintiff had commenced an action against
that same Mr. Biljan, Mr. Tremblay's assertion
that the Administrator should be on the Board is,
to say the least, rather disturbing. The Adminis
trator was prudent in declining the invitation and
Mr. Tremblay would have been well-advised to do
likewise. It also appears from his affidavit that, at
first, Mr. Tremblay did not intend to sit but
merely to appoint members of the Board. I can
only surmise that, at that early stage, he must have
felt some concern about his own presence on the
Board. It seems to me that if he merely changed
his mind because he could find no one else to sit on
the Board on October 24, 1988, it would have been
more judicious on his part to set another date for
the interview. Having contacted the Administra
tor, who after all is a defendant in this action, and
having discussed with him at least the substance of
the action, namely the classification of the position
to "bilingual imperative", and the reclassification
to "bilingual non-imperative" and the application
of the plaintiff for the position, Mr. Tremblay, in
my view, had placed himself in a situation where it
would become difficult for the plaintiff to believe
that Mr. Tremblay could perform a fair and
unbiased assessment. Moreover, as mentioned ear
lier, Mr. Tremblay opined that he might seek
references about the plaintiff not only from his
immediate superior, the District Administrator,
but also from Mr. Biljan himself. Under normal
circumstances, that is the proper thing to do, but
not when an employee is suing his superior and the
6 American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396
(H.L.).
subject of the action is the very position for which
the employee is competing.
Under the circumstances I find that there is not
only a serious issue to be tried, but indeed a prima
facie case. As to irreparable harm, the plaintiff
will obviously suffer not only financially, but in the
advancement of his own career, if his application is
by-passed or ranked downwards on the eligible list.
Finally, the balance of convenience is clear cut: the
defendants may simply replace Mr. Tremblay on
the panel and proceed with the competition.
Consequently, the motion is granted with costs.
The injunction sought will issue as requested.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.